Swift & Co. v. Little

• Decision Date: 11 January 1907
• Citation: 65 A. 615,28 R.I. 108
• Court: Rhode Island Supreme Court
• Parties: SWIFT & CO. v. LITTLE.

65 A. 615

28 R.I. 108

SWIFT & CO.

v. LITTLE.

Supreme Court of Rhode Island.

Jan. 11, 1907.

Action by Swift & Co. against Amos P. Little. Certified to the Supreme Court on a question of law.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

Edward D. Bassett, Michael W. Callaghan, and William J. Brown, for plaintiff. Edwards & Angell and Barney & Lee, for defendant.

DOUGLAS, C. J. This case depends upon the construction of section 36 of chapter 253 of the General Laws 1896, as amended by chapter 980, p. 53, of the Public Laws 1902, which reads as follows: "Sec. 36. No corporation, unless incorporated by the General Assembly of this state, or under general law of this state, excepting national banking associations or other corporations existing under the laws or by the authority of the United States, shall carry on within this state the business for which it was incorporated, or enforce in the courts of this state any contract made within this state, unless it shall have complied with the following sections of this chapter." The words in italics were added by chapter 980. The "following sections" of chapter 253 direct, that a foreign corporation shall appoint and continue an attorney in this state to receive service of process, and impose a penalty upon any person who acts as agent in this state of any such corporation unless such corporation shall have appointed an attorney to receive service of process. The difficulty in construction is caused by the fact that the statute contains two prohibitions and the condition affecting them is only once expressed. This section fully expressed would read, according to the established structure of the English language, as follows: "No corporation except," etc., "shall carry on within this state the business for which it was incorporated unless it shall have complied with the following sections of this chapter, or shall enforce in the courts of this state any contract made within this state unless it shall have complied with the following sections of this chapter."

The defendant contends that the second clause should be construed to mean the same as if it read, "or shall enforce in the courts of this state any contract made within this state unless it shall have complied with the following sections of this chapter before making the contract." This is not a natural construction of the section. There are two prohibitions to which the condition is the same. In each case it is the appointment of an attorney. If a foreign corporation wishes to carry on business in this state it must first appoint an attorney. If it desires to sue upon, or set up in defense, a contract made in this state, it must first appoint an attorney. Compliance with the condition must precede the act. The last clause of the section does not prohibit a corporation setting up a contract in our courts unless the corporation has complied with the first clause of the section, but unless it has appointed an attorney as provided in the following sections.

The argument for the defendant's construction is as follows: There can be no question that, in relation to carrying on business, the words "unless it shall have complied" refer to time prior to such carrying on of business, and therefore, in relation to enforcing a contract in our courts, they must refer, not to the time when the contract is sought to be enforced, but to the time when the business was carried on or the contract was made; that the words in question refer jointly and not separately to both prohibitions. The plain answer to this is that the statute does not state the two prohibitions conjunctively but disjunctively. Grammatically they do not stand together, but apart, being separated by the word "or." The statute is a penal one, or at least imposes a disability, and the court cannot distort its language for the purpose of aggravating the penalty. The confusion of thought in the defendant's argument arises partly from the assumption that the "carrying on business" referred to in the first clause of the section is identical with "making a contract" referred to in the second. This becomes clear when we consider the difference in the things treated of in the two clauses of the section. Carrying on the business for which a corporation is incorporated is not the same thing as making a contract within this state. Still less is...